「2004 State Constitutions and American Tort Law-Witt 11 "left to the jury. 25 This is not to say that there were no further constitutional challenges in the courts to the wrongful death statutes around the turn of the twentieth century. Defendants and plaintiffs alike lodged a variety of miscellaneous challenges against, forexample, state statutes that authorized wrongful death actions only by resident administrators of the decedents estate, or distinguished between injuries to citizens of the state and non- citizens of the state state statutes that were said to impinge on Congress's authority to regulate interstate commerce", and state statutes that impermissibly failed to express their purpose in their title. When Missouri s legislature eliminated the mandatory damages provision of its early wrongful death scheme and conferred on juries the discretion to award damages ranging from $2,000 to $10,000 in death cases, defendants legislatures responsibility to fix penalties. Constitutional challenges nineteenth-century tort reform have even continued into our own time Many state wrongful death statutes, for example, provided greater benefits to widows than to widowers until 1980, when the United States Supreme Court ruled that such gendered asymmetries discriminated unconstitutionally on the basis of sex 3I Okla. Const of 1907, art. 23,$6 2 Maysville Street RR& Transfer Co. V. Marvin, 59 F. 91(6th Cir. 1893)(upl Kentucky statute authorizing wrongful death actions only by resident administrators against challenge der the Privileges and Immunities Clause of the U.S. Constitution, art. IV,$2) death provision distinguishing between state resident decedents and non-state-resident decedents on the ground that the provision does not distinguish between citizen and non-citizen parties), affirming on other grounds Baltimore Ohio RR. v Chambers, 76N E 91(Ohio 1905)(holding that the Ohio ful death provision did not violate the Privileges and Immunities Clause of the U.S. Constitution Iv,$2 on the ground that the constitutional provision "applies only to fundamental and universal rights, not to special privileges"); Schell v. Youngstown Iron Sheet& Tube Co., 16 Ohio C D. 209, 26 hio CC 209, 4 Ohio CC (N.S. )172(Ohio Cir. 1904)(interpreting the Ohio wrongful death provisio to avoid conflict with the Privileges and Immunities Clause of the U.S. Constitution, art. IV, $2). Southen Ry v King, 217 U.S. 524(1910), affirming Southern Ry v King, 160 F 332 2See Croft v Southern Cotton Oil Co., 65S. E 216(1909) Young v St Louis, IM,&S Ry, 127S. W. 19(Mo 1910) See Wengler v Druggists Mutual Ins Co., 446US 142(1980)(striking down dispart in workers' compensation stature that made it more difficult for widowers to claim benefits than for
[2004] State Constitutions and American Tort Law – Witt 11 25Okla. Const. of 1907, art. 23, § 6. 26Maysville Street RR & Transfer Co. V. Marvin, 59 F. 91 (6th Cir. 1893) (upholding a Kentucky statute authorizing wrongful death actions only by resident administrators against challenge under the Privileges and Immunities Clause of the U.S. Constitution, art. IV, § 2). 27Baltimore & Ohio RR v. Chambers, 207 U.S. 142 (1907) (upholding an Ohio wrongful death provision distinguishing between state resident decedents and non-state-resident decedents on the ground that the provision does not distinguish between citizen and non-citizen parties), affirming on other grounds Baltimore & Ohio RR. v. Chambers, 76 N.E. 91 (Ohio 1905) (holding that the Ohio wrongful death provision did not violate the Privileges and Immunities Clause of the U.S. Constitution, art. IV, § 2 on the ground that the constitutional provision “applies only to fundamental and universal rights, not to special privileges”); Schell v. Youngstown Iron Sheet & Tube Co., 16 Ohio C.D. 209, 26 Ohio C.C. 209, 4 Ohio C.C.(N.S.) 172 (Ohio Cir. 1904) (interpreting the Ohio wrongful death provision so as to avoid conflict with the Privileges and Immunities Clause of the U.S. Constitution, art. IV, § 2). 28Southern Ry. v. King, 217 U.S. 524 (1910), affirming Southern Ry. v. King, 160 F. 332 (5th Cir. 1908). 29See Croft v. Southern Cotton Oil Co., 65 S.E. 216 (1909). 30Young v. St. Louis, I.M., & S. Ry, 127 S.W. 19 (Mo. 1910). 31See Wengler v. Druggists’ Mutual Ins. Co., 446 U.S. 142 (1980) (striking down disparity in workers’ compensation stature that made it more difficult for widowers to claim benefits than for widows). “left to the jury.”25 This is not to say that there were no further constitutional challenges in the courts to the wrongful death statutes around the turn of the twentieth century. Defendants and plaintiffs alike lodged a variety of miscellaneous challenges against, for example, state statutes that authorized wrongful death actions only by resident administrators of the decedent’s estate,26 or distinguished between injuries to citizens of the state and noncitizens of the state27; state statutes that were said to impinge on Congress’s authority to regulate interstate commerce28; and state statutes that impermissibly failed to express their purpose in their title.29 When Missouri’s legislature eliminated the mandatory damages provision of its early wrongful death scheme and conferred on juries the discretion to award damages ranging from $2,000 to $10,000 in death cases, defendants unsuccessfully challenged the legislation as an abdication of the legislature’s responsibility to fix penalties.30 Constitutional challenges to nineteenth-century tort reform have even continued into our own time. Many state wrongful death statutes, for example, provided greater benefits to widows than to widowers until 1980, when the United States Supreme Court ruled that such gendered asymmetries discriminated unconstitutionally on the basis of sex.31
State Constitutions and American Tort Law-Witt But the fundamental lesson of the constitutional law of the wrongful death statutes was that when the people of a state sought to enshrine in their constitution some rule to limit the legislatures authority over the law of torts, they were capable of doing so quite expressly. Indeed, the Pennsylvania constitution of 1874 suggested a remarkably sophisticated and highly promising approach to the state constitutional law of torts. In addition to prohibiting limits on the amount recoverable in death cases, the 1874 constitution also prohibited the General Assembly from setting different statutes of limitations periods for suits"brought against corporations, on one hand, and for suits brought"against natural persons, on the other. The concern, evidently, was either the possibility that erful corporations might capture the Assembly to advance its own interests, or that popular anti-corporation ideas would lead to discrimination gainst the use of a legal form that the constitution-drafters wanted to encourage. To counter these prospects, state constitution-makers were able to craft specific and express legislation. There would be no need for courts in Pennsylvania or elsewhere to resort to vague and open-ended clauses in the constitution in trying to determine whether a damages cap for wrongful death cases was constitutional, or whether a special statute of limitations time for railroad injuries was permissible, for the drafters of late nineteenth- century constitutions such as Pennsylvania's had specified with precision the limits on the legislature in the torts area. This was a lesson that a number of state courts all too quickly forgot Ill. Nineteenth-Century Railroad Liability Legislation In the late nineteenth century, constitutional challenges to legislation became for the first time commonplace in American legal culture. Historians disagree on why the number of constitutional challenges 3Pa Const of 1874, art. Ill,$21 cap of $5,000 under the constitutional provision barring legislated limits on damages in Palmer v. Philadelphia, B& w.R. Co., 66 A 1127(Pa. 1907)(upholding statutory of punitive damages by plaintiffs in wrongful death actions notwithstanding lated limits on damages in death cases), Utah Savings Trust Co v. Diamond Coal Coke Co.,73 P 524(Utah 1903)(striking down statutory damages cap of $5,000 under
12 State Constitutions and American Tort Law – Witt 32Pa. Const. of 1874, art. III, § 21. 33See Pennsylvania R.R. v. Bowers, 16 A. 836 (Pa. 1889) (striking down statutory damages cap of $5,000 under the constitutional provision barring legislated limits on damages in death cases); Palmer v. Philadelphia, B. & W. R. Co., 66 A. 1127 (Pa. 1907) (upholding statutory rule barring recovery of punitive damages by plaintiffs in wrongful death actions notwithstanding constitutional provision barring legislated limits on damages in death cases); Utah Savings & Trust Co. v. Diamond Coal & Coke Co., 73 P. 524 (Utah 1903) (striking down statutory damages cap of $5,000 under Wyoming law); But the fundamental lesson of the constitutional law of the wrongful death statutes was that when the people of a state sought to enshrine in their constitution some rule to limit the legislature’s authority over the law of torts, they were capable of doing so quite expressly. Indeed, the Pennsylvania constitution of 1874 suggested a remarkably sophisticated and highly promising approach to the state constitutional law of torts. In addition to prohibiting limits on the amount recoverable in death cases, the 1874 constitution also prohibited the General Assembly from setting different statutes of limitations periods for suits “brought against corporations,” on one hand, and for suits brought “against natural persons,” on the other.32 The concern, evidently, was either the possibility that powerful corporations might capture the Assembly to advance its own interests, or that popular anti-corporation ideas would lead to discrimination against the use of a legal form that the constitution-drafters wanted to encourage. To counter these prospects, state constitution-makers were able to craft specific and express legislation. There would be no need for courts in Pennsylvania or elsewhere to resort to vague and open-ended clauses in the constitution in trying to determine whether a damages cap for wrongful death cases was constitutional,33 or whether a special statute of limitations time for railroad injuries was permissible, for the drafters of late nineteenthcentury constitutions such as Pennsylvania’s had specified with precision the limits on the legislature in the torts area. This was a lesson that a number of state courts all too quickly forgot. III. Nineteenth-Century Railroad Liability Legislation In the late nineteenth century, constitutional challenges to legislation became for the first time commonplace in American legal culture. Historians disagree on why the number of constitutional challenges
「2004 State Constitutions and American Tort Law-Witt to reform legislation seems to have risen sharply during this period. But whatever the reason, judicial review of reform legislation became increasingly significant at the end of the nineteenth century, and tort lawyers quickly learned to make constitutional challenges to legislation part of their litigation strategies( Forbath 1991; Urofsky 1985) In the area of tort reform. two kinds oflegislation took center stage in the drama of constitutional review: legislation regarding railroad injuries and legislation amending the law of employers' liability. In a number of these cases, courts disregarded the lesson of the state constitutional provisions regarding wrongful death by striking down reform legislation under vague and open-ended constitutional provisions. But most courts resisted this temptation, upholding the overwhelming majority of challenged tort reform statutes. In doing so, however, during the half- century following the end of the Civil War, the railroad injury cases in particular became a forum in which courts articulated an important principle of American constitutional law. Legislatures were generally free, these courts said to allocate and reallocate the risk of accidents on railroads and in employment, but they could only allocate the costs of accidents among parties who caused them. Tort reform, in other words, could not constitutionally become a vehicle for the redistribution of property from one class to another. The way courts policed this line was to require that legislatures not allocate accident costs to parties who lacked a causal relationship to the costs in question A. Railroad Liability Legislation and the Constitutional Causation Requirement The first line of railroad injury cases arose out of statutes making railroads strictly liable, regardless of negligence, for any injury done to buildings or other property of others by fire communicated by sparks from railroad engines. Massachusetts had enacted the first such spark fire statute in 1840. Similar statutes followed quickly in Maine and New hampshire Mass. Gen. Laws ch 85,8 1(1840); see also Lyman v Boston& Wo (4 Cush. )288(1849). The strict liability approach was only one approach to the general problem. In 837 Massachusetts had enacted legislation making railroads liable for injuries to buildings or other property"unless the said corporation shall show that they have used all due caution and diligent
[2004] State Constitutions and American Tort Law – Witt 13 34Mass. Gen. Laws ch. 85, § 1 (1840); see also Lyman v. Boston & Worcester RR, 58 Mass. (4 Cush.) 288 (1849). The strict liability approach was only one approach to the general problem. In 1837 Massachusetts had enacted legislation making railroads liable for injuries to buildings or other property “unless the said corporation shall show that they have used all due caution and diligence.” to reform legislation seems to have risen sharply during this period. But whatever the reason, judicial review of reform legislation became increasingly significant at the end of the nineteenth century, and tort lawyers quickly learned to make constitutional challenges to legislation part of their litigation strategies (Forbath 1991; Urofsky 1985). In the area of tort reform, two kinds of legislation took center stage in the drama of constitutional review: legislation regarding railroad injuries and legislation amending the law of employers’ liability. In a number of these cases, courts disregarded the lesson of the state constitutional provisions regarding wrongful death by striking down reform legislation under vague and open-ended constitutional provisions. But most courts resisted this temptation, upholding the overwhelming majority of challenged tort reform statutes. In doing so, however, during the halfcentury following the end of the Civil War, the railroad injury cases in particular became a forum in which courts articulated an important principle of American constitutional law. Legislatures were generally free, these courts said, to allocate and reallocate the risk of accidents on railroads and in employment, but they could only allocate the costs of accidents among parties who caused them. Tort reform, in other words, could not constitutionally become a vehicle for the redistribution of property from one class to another. The way courts policed this line was to require that legislatures not allocate accident costs to parties who lacked a causal relationship to the costs in question. A. Railroad Liability Legislation and the Constitutional Causation Requirement The first line of railroad injury cases arose out of statutes making railroads strictly liable, regardless of negligence, for any injury done to buildings or other property of others by fire communicated by sparks from railroad engines. Massachusetts had enacted the first such spark fire statute in 1840.34 Similar statutes followed quickly in Maine and New Hampshire